Charles A. Turner, Kt., C.J. and Muttusami Ayyar, J.
1. From the decision on Krishna Behari Roy v. Bunwari Lall Roy I.L.R. 1 Cal. 144 it appears that in that case the question of title had been carried up to the highest Court of appeal in India and finally determined. The circumstances of the present case are different.
2. The former suit was a suit for rent. It was dismissed by the Lower Appellate Court. The tenant had no reason to object to a decree, which was altogether in his favour, and it was not, in our judgment, competent to him to present an appeal from the finding on an issue.
3. We agree with the Judge that the matter is not, under the circumstances, res judicata. We see no reason to disturb the Judge's order remanding the suit for trial, nor do we see any reason why the Sub-Collector should not proceed to determine it, for there has been no denial of the relation of landlord and tenant.
4. The appeal fails and is dismissed with costs.